"Needless to say, a person's knowledge that a certain person is committing a crime, or is preparing to commit an offense, does not in itself impose criminal liability on him... It is also a rule that inaction does not constitute assistance, unless there is an obligation to do that is not purely moral. Such an obligation may stem from the law, from an obligation or from the nature of the position."
For the purpose of the discussion, we will somewhat ignore the fact that Fischer did not hold any position vis-à-vis David – all the more so in a position by law or by contract (cf. M. Kremnitzer, L. Levanon-Morag, "On the Need for a Source of Duty for the Purpose of Establishing the Offence of Aiding and Abetting Failure" in Alei Mishpat 4 (2005) 175, 178) – and this is in contrast to the situation of managerial supervision of his employee, which is governed by the rule quoted regarding the duty to act arising from the nature of the position. We will also add and ignore, at this stage, the fact that a condition for the duty to act that constitutes criminal liability for the principal performance of the offense of obstruction of justice in the alternative relevant to our case (as distinct from criminal liability for aiding and abetting an omission that is not relevant to our case, in which Fischer was charged as the principal perpetrator and not as an aider), is the existence of a legal obligation external to section 244 of the Penal Law; Hence another error in the argument presented by the accuser in the hearing of July 14, 2016 (p. 127): "We are of the opinion that the source of the obligation is in section 244. This is the source of duty – obstruction of justice." Prof. S.Z. Feller noted this:
"The definition of the offense opens with the vague words 'one who does something' and continues, afterwards, with a description of the methods of action as follows: '... Whether by thwarting the summons of a witness, by concealing evidence, or in some other way'... The way of 'concealing evidence', when it is passive behavior, is described in a specific way, and gives expression to a very specific and specific 'do' order – 'discover' the truth about the sources of evidence in your possession. There is no need for an additional duty anchored in any other law, so that this behavioral alternative will serve as a behavioral component of the factual element of the said offense. On the other hand, the last alternative – 'in another way' – which may also encompass a passive behavioral component, is charged, alongside it, the duty to 'do,' specifically, from another normative source, in order to warn the individual about the certain ways of behavior that society desires, without imposing on the public a general decree that it is unable to abide by" (S.Z. Feller, Foundations of Penal Law (Vol. 3-1992), pp. 157-158; emphasis added. See also: Criminal Appeals Authority 3626/01 Weizmann v. State of Israel, IsrSC 56(3) 187, 219-221 (2002); Y. Levy, A. Lederman, Principles of Criminal Liability (1981), p. 163; Y. Rabin, Y. Vaki, Penal Law (Vol. 1, Third Edition - 2014), p. 209).